7 Feb 2016

In part 1 we set out our prediction that there won't be a referendum in June. It examined the sham renegotiation and the 'deal' that only pretends to deliver reform.

The deal adds hardly anything to powers that countries already have under the existing treaties. It's so poor, so lacking in substance and so transparently meaningless, it could never be the basis for a referendum vote. It seems to be either a delaying tactic designed to kill time, or the warm up act for something very different to be presented. This post focuses on second of those two possibilities, that the renegotiation and deal was just a warm up act for another performance.

Dismissing the renegotiation deal, what could Cameron put in front of the country that would see him claim that we will have a fundamental change in our relationship with the EU? In short, the notion of Parliamentary sovereignty and creation of a new British Constitutional Court.

On Wednesday, the Guardian said Cameron has suggested that he will introduce further measures to assert the
sovereignty of the UK parliament if he successfully concludes a deal on
the terms of Britain’s EU membership. The piece explained that the prime minister said he would move to “put beyond doubt” the
sovereignty of parliament when he was challenged on his negotiations by Boris Johnson. It went on to say:

In a rare Commons intervention, Johnson asked the prime minister on
Wednesday to explain how his EU negotiations will help to assert the
authority of parliament. He asked: “How will this negotiation restrict
the volume of legislation coming from Brussels, will [it] change the
treaties so as to assert the authority of this House of Commons and of
these houses of parliament?”

The prime minister, who is keen for Johnson’s support in campaigning
to keep Britain in the EU, gave a highly detailed response. He said that
he would “put beyond doubt” that the Commons is sovereign, adding:
“That is something I am keen to do even more on – to put beyond doubt
that this house is sovereign. That is something we will look to do at
the same time as concluding these negotiations.

To underpin the supremacy of Parliament that Cameron envisages, he has instructed Michael Gove to bring forward plans for the creation of a Constitutional Court similar to that in Germany.

The German court was established in 1951 with powers to strike down legislation that is incompatible with its constitution.

Parliament having precedence over the EU and backed by a Constitutional Court to overrule EU laws would certainly be a fundamental change. It would be red meat for those who want to see Britain in charge of its own affairs. No doubt it would be a referendum vote winner. But it is also pie in the sky.

Anyone trying to argue that Britain can remain in the EU and that Parliament can be sovereign, or that a new Constitutional Court can bat away EU laws, would be lying. I'm not saying they would be exaggerating or overstating the position. I'm saying it is not true. At all.

With this in mind it is instructive to look at the coverage of this in the media. Instead of taking the opportunity to squash the self evident nonsense of Cameron's false claims, and highlight the waste in time and public resources of having a talking shop that cannot effect any change, the media has allowed partial information to go unchallenged. A case in point is the Telegraph.

On Thursday, a Christopher Hope story in the Telegraph reported that Mr Cameron raised the prospect this week of the UK appointing a
German-style federal court which will have the power to reject EU rules. He turned to Anthony Speaight QC who was quoted thus:

This passage is interesting for what isn't said. For example, the reason the German court has never used its power is because it knows it doesn't have the power to stop EU laws being handed down and implemented in Germany. The court recognises that EU law has primacy and if it were to declare an EU law unconstitutional the European Court of Justice (ECJ) would use its legal primacy to overrule the Germans. That's what a country accepts as part of EU membership. There is no way around it.

What is more interesting is the misleading half-story regarding the Czech Republic, which is highlighted. Speaight's claim is false. The EU Law Analysis blog explained in 2014 what actually happened (I've highlighted some key details):

There was no veto of EU law at all!

Instead the Czech court had stepped in to declare the national legislation written by the Czech government to implement the Directive as unconstitutional. Additionally, the piece shows the Germans also recognised the EU Directive could not be reviewed. The outcome was the Czech government revised its own legislation to ensure it was constitutional, and it implemented the Directive unmolested. Telegraph readers would not know this, as they have been left thinking that a veto of EU law is possible, when in reality it isn't.

Speaight's trip into the realm of fantasy continued when he assessed the merits of having a British Constitutional Court, saying:

The arguments for and against are the same as for Trident – there is a
value in a nuclear deterrent because it might deter EU institutions from
overstepping the mark.

This is palpable nonsense. As EU law has primacy it isn't capable of overstepping the mark as the EU decides where the mark, if there is one, is. And seeing as EU member states have no choice but to implement EU Directives, why would a powerless court in Britain possibly opposing a Directive give the EU even a moment's pause for thought before it hands down the legislation to implement? In fact, this truth is underlined by Speaight himself as he finally returns to reality and tells us:

To exercise such a power puts the state involved in conflict with its
international obligations under the EU treaties to give effect to all EU
law.

It should be noted that even though Michael Gove has been tasked with setting up this Constitutional Court, even he has carefully couched his language to only give the impression of primacy when in reality it will be powerless.

As the Telegraph piece makes clear, the Justice secretary, said that Britain’s supreme court
could in future act as a constitutional court and:

"have capacity to say
that in certain areas EU law ran counter to certain British freedoms."

The court, be it a wholly new creation or part of the existing Supreme Court could say anything it likes. But it won't be able to change a thing, regardless of what Parliament wants. EU member states have given up that ability to run their own countries. It would be a waste of time, effort and a huge waste of salaries and operating costs paid for from our tax pounds.

So, could the sham renegotiation deal be the warm up act for this? Could David Cameron be preparing to sweep aside his 'hard won' deal in favour of this new illusion? Cameron's thinking could be that too few people will understand the distinctions and therefore vote to remain in the EU on the basis of this empty rhetoric that Britain is somehow taking back control.

But it seems implausible that Cameron would be able to get away with such a blatant lie. Britain cannot unilaterally rewrite the rules on EU membership to ignore EU laws and ignore the judgements of the highest court of our country's legal system, the ECJ. The only way such power could rest in British hands is if we were to leave the European Union. That isn't on Cameron's agenda.

Perhaps then this notion of Parliamentary sovereignty and a Constitutional Court, which could never deliver what Cameron is claiming, is merely a red herring or another delaying tactic. It could never stand up to even the most basic of scrutiny and would likely destroy Cameron's Prime Ministership into the bargain, seeing him forced out and replaced before his planned resignation date ahead of the next election.

That leaves one final possibility and the one I consider the most likely to be played out. It is still something that could see Cameron replaced by Tory MPs. Part 3 will look at what appears to be coming down the line, the most realistic referendum timing, and my prediction for Cameron's successor.